from the good-to-see dept

As we've been covering the Prenda debacle for years, there was still the one big "victory" it had, in which a DC district court judge ruled that randomly lumping together over a thousand unrelated "Does" was perfectly legitimate, something most other courts had found to be inappropriate. Of course, people quickly figured out that the judge who found in favor of this bizarre joinder ruling, had only recently been appointed to the bench, having previously been an RIAA lobbyist, and who, years earlier, had helped write the DMCA as a Congressional staffer.

That case made its way slowly through the appeals process, and earlier today, the DC Circuit appeals court overturned the ruling, highlighting a bunch of Prenda's bad behavior, but (perhaps more importantly) pointing out that the subpoenas for information on these 1,000+ Does was clearly inappropriate, first because almost none of the Does appeared to live in Washington DC, and thus were outside the court's jurisdiction. Prenda/AF Holdings complete failure to do anything even remotely close to figuring out if people might be located in DC was pretty damning here:

Federal Rules of Civil Procedure 45 and
26 set forth the relevant considerations. Rule 45(d)(3)(A)
requires a district court to “quash or modify a subpoena that
. . . subjects a person to undue burden.” If a subpoena compels
disclosure of information that is not properly discoverable,
then the burden it imposes, however slight, is necessarily
undue: why require a party to produce information the
requesting party has no right to obtain?

And, here, the court certainly finds the discovery attempts to be "undue," because AF Holdings/Prenda could show no good faith belief that they were going after information relevant to a lawsuit in that court.

Here, we think it quite obvious that AF Holdings could
not possibly have had a good faith belief that it could
successfully sue the overwhelming majority of the 1,058 John
Doe defendants in this district. AF Holdings concedes that
under the District of Columbia’s long-arm statute, which
along with the Due Process Clause governs this question... the only conceivable way that
personal jurisdiction might properly be exercised over these
Doe defendants is if they are residents of the District of
Columbia or at least downloaded the copyrighted work in the
District.... But AF Holdings
has made absolutely no effort to limit its suit or its discovery
efforts to those defendants who might live or have
downloaded Popular Demand in the District of Columbia.
Instead, it sought to subpoena Internet service providers that
provide no service at all in the District. As Duffy reluctantly
conceded at oral argument, AF Holdings could have no
legitimate reason for objecting to the court’s quashing the
subpoenas directed at these providers.... Even for those providers that do serve the District of
Columbia, AF Holdings’s discovery demands were overbroad
because it made no attempt to limit its inquiry to those
subscribers who might actually be located in the District. It
could have easily done so using what are known as
geolocation services, which enable anyone to estimate the
location of Internet users based on their IP addresses. Such
services cost very little or are even free.

The court notes that Prenda's failure to do even the most basic things to limit discovery raises questions about its motives:

Given AF Holdings’s
failure to take even these minimal steps, we cannot escape the
conclusion that it sought the vast majority of this information
for reasons unrelated to its pursuit of this particular lawsuit.... . Indeed, Duffy essentially admitted as much at
oral argument, stating that if, as appears to be the case, 399 of
Comcast’s 400 identified subscribers were found to live
outside the District, “the 399 likely wouldn’t be named as
defendants in this case.”

The court then checks in on the big question of "joinder" -- and whether or not it's appropriate to lump together over 1,000 totally unrelated individuals in one of these copyright trolling lawsuits. Like most courts to date, but unlike Judge Howell, the appeals court sees how problematic this is.

We are unconvinced. For purposes of this case, we may
assume that two individuals who participate in the same
swarm at the same time are part of the same series of
transactions within the meaning of Rule 20(a)(2). In that
circumstance, the individuals might well be actively sharing a
file with one another, uploading and downloading pieces of
the copyrighted work from the other members of the swarm.

But AF Holdings has provided no reason to think that the
Doe defendants it named in this lawsuit were ever
participating in the same swarm at the same time. Instead, it
has simply set forth snapshots of a precise moment in which
each of these 1,058 Does allegedly shared the copyrighted
work—snapshots that span a period of nearly five months.
Two individuals who downloaded the same file five months
apart are exceedingly unlikely to have had any interaction
with one another whatsoever. Their only relationship is that
they used the same protocol to access the same work. To
paraphrase an analogy offered by amicus counsel at oral
argument, two BitTorrent users who download the same file
months apart are like two individuals who play at the same
blackjack table at different times. They may have won the
same amount of money, employed the same strategy, and
perhaps even played with the same dealer, but they have still
engaged in entirely separate transactions.... We therefore agree with
those district courts that have concluded that the mere fact
that two defendants accessed the same file through BitTorrent
provides an insufficient basis for joinder.

It's nice to see that the court picked up on many of the amicus arguments made by EFF, ACLU, Public Knowledge and Public Citizen.

Oh, and, in case you're wondering about all the other stuff, such as the Alan Cooper forgery, the court notes those allegations, while saying they are unrelated to the issues here, but, at the very end, in sending the case back to the district court, tosses this in:

Accordingly, we vacate the district court’s order and
remand for further proceedings consistent with this opinion.
We leave it to the district court to determine what sanctions, if
any, are warranted for AF Holdings’s use of a possible
forgery in support of its claim.

from the they-could-all-be-sharing! dept

US Copyright Group (really DC-based law firm Dunlap, Grubb & Weaver) is the group that famously has sued thousands of people not to actually take anyone to court, but in an attempt to find out who they are so it can send them "pre-settlement" letters, demanding payment of thousands of dollars to get them to drop a potential lawsuit. Of course, for this "business model" to work, it can't actually get involved in costly lawsuits or even go to the trouble of spending the fees involved in filing lots of separate lawsuits in the location where the defendants actually live. So it lumped them all together into a single lawsuit in DC. Lots of folks quickly pointed out that this seems to violate the law, and the judge in one of the cases has asked USCG to explain why she shouldn't dump all but one of the defendants from the suit.

THREsq is reporting on USCG's response, where it tries to defend lumping all of the defendants into one giant case through the somewhat amusing claim that, due to the way BitTorrent works, all the defendants are linked because (who knows!?!) all of the defendants may have actually shared bits of the file with each other! Seriously.

Under the BitTorrent protocol, the initial file-provider
intentionally elects to share or upload a file via a BitTorrent network.... This is called
"seeding." ... Other users ("peers") on the network connect to the seeder to download.... As
additional peers request the same file, each additional user becomes a part of the network (or
"swarm") from where the file can be downloaded, which means that such additional user's
computer is connected not only to the seeder/uploader but also to other peer/downloaders....
Unlike the older P2P protocols, each new file downloader is receiving a different piece of the
data from each user who has already downloaded that piece of data, all of which pieces together
comprise the whole.... This means that every "node" or peer user who has a copy of the
infringing copyrighted material on such a network--or even a portion of a copy--can also be a
source of download for that infringing file, potentially both copying and distributing the
infringing work simultaneously....

This distributed nature leads to a rapid viral spreading of a file through peer users, all of
whom are both uploading and downloading portions of the file simultaneously.... As more peers join the swarm, the likelihood of a successful
download increases... Because of the nature of the BitTorrent protocols, any peer that has
downloaded a file prior to the time a subsequent peer downloads the same file is automatically a
possible, and even likely, source of the file for the subsequent peer.... Essentially, because of
the nature of the swarm downloads as described above, every infringer is simultaneously stealing
copyrighted material through collaboration from many other infringers, through a number of
ISPs, in numerous jurisdictions around the country.

Of course, no one charged anyone with theft here, so it's a bit odd to see USCG claim that "stealing" happened. If that were the case, why not go to the police? But, more importantly, USCG is trying to argue that because BitTorrent involves little bits shared via a swarm, that it makes sense to link all the lawsuits since they may have been together in a swarm.

I can't see how that actually makes any sense. Each of the actions were done independently, and there's no evidence presented that these all were actually a part of the same swarm.

On top of that, I do wonder if calling out some of the specifics of how BitTorrent works could actually do harm to any case that actually goes to court (as if that will ever happen). Some have pointed out that with the way BitTorrent is set up, that anyone doing the sharing is contributing such a minimal part to the whole (something USCG seems to be admitting here), that users have a stronger (though, certainly not concrete) fair use claim, in that the amount they share/receive is tiny and not a large portion of the file.

Either way, this response seems pretty weak, and hopefully the judge agrees.

from the convince-me dept

Following the filing from the EFF, Public Citizen and the ACLU questioning US Copyright Group's (really law firm Dunlap, Grubb and Weaver) decision to lump together thousands upon thousands of copyright infringement lawsuits into a single lawsuit, it sounds like the judge in the case is quite skeptical of the strategy. She's demanding that US Copyright Group explain in writing why she shouldn't throw out all but one of the John Doe defendants for "misjoinder."

A brief entry in the official court docket lays out the order. "MINUTE ORDER requiring Plaintiff to show cause in writing no later than June 21, 2010 why Doe Defendants 2 through 2000 should not be dismissed for misjoinder under Federal Rule of Civil Procedure 20," wrote the judge in The Steam Experiment case. The same order was repeated in a separate case targeting 4,577 users alleged to have shared the film Far Cry.

Considering that USCG has been making the argument that ISPs who don't hand over the names of the accused are guilty of inducing infringement, I can't wait to see the legal response. In the meantime, though, it's good that the judge appears to be aware that this strategy is highly questionable.